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Overstating an injury – worker’s application to constrain employer dismissed

A court has ruled that his employer is not entitled to pursue a case.
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Overstating an injury – worker’s application to constrain employer dismissed

Overstating an injury – worker’s application to constrain employer dismissed

8 September 2020

By Gaby Grammeno

A court has dismissed a worker’s application for a ruling that his employer is not entitled to pursue a case that the worker deliberately overstated the effect of a claimed work injury. The worker claims a work injury aggravated a problem with his knee when he was covering the load on his truck with a tarpaulin and fell to the ground, twisting his knee.

The incident

The worker was employed as a plant operator with a Queensland regional council. In the course of his employment he was required to cover the load on his truck with a tarpaulin, securing it to hooks at the back of the truck. In September 2014, while carrying out that task he fell over and twisted his knee.

He claimed that as a result of that injury he suffers from chronic pain in his right lower leg.

The damages claim and the employer’s response to it

The worker made a common law claim for damages from the council, alleging his employer was negligent in requiring him to perform a task that was unsafe. He said that the task of hitching the tarpaulin meant he had to reach forward to grab a rope while balancing on one foot on the toe-hitch which was 600mm from the ground, then step down to the ground with his other foot. As there were no hand-holds on the rear of the truck he’d fallen, twisting his knee.

The employer denied the allegation in the worker’s statement of claim for damages. The council’s response set out their position that the man’s symptoms were wholly attributable to his preexisting knee condition. The employer’s statement pointed out that hospital records attest to a history of right knee pain dating back to 1994, when he ruptured the anterior cruciate ligament of his right knee while playing football, and reinjured it in 2011, tearing the meniscus and resulting in surgical intervention to attempt a repair.

The employer’s statement added that even if the man had injured his knee as he claimed, he had caused or contributed to his own injury by failing to take reasonable care for his own safety and failing to carry out the task in a safe manner. In particular, they said he had not complied with the relevant safe work methods or his supervisor’s instructions, had not obtained help from another person with the task or asked the person loading the truck to flatten the hump of the load, which would have made it easier to pull the tarpaulin over it.

As well as denying the allegations, the employer disputed the quantification of the man’s claim for damages on the ground that they are unreasonable and excessive and wholly disproportionate to the nature and extent of his true loss and damage.

The worker felt that his employer’s response amounted to an allegation of fraud against him, but that the employer had erred because it had not specifically pleaded this case as required by the relevant rules (Queensland’s Uniform Civil Procedure Rules 1999).

On this basis, the worker applied for a ruling to prevent his employer from pursuing a case that the worker deliberately embellished or overstated the effect of a claimed work injury. The application was heard in the District Court of Queensland.

In court

The District Court judge did not support the worker’s position, finding that the employer’s pleadings did not misdirect the worker ‘as to the nature of the case being run’.

The employer’s solicitors had previously provided video surveillance of the worker to the worker’s legal representatives, which was said to demonstrate inconsistencies with the man’s account of his symptoms, level of pain and incapacity to work.

The worker referred to another court case in which an employer had been blocked from using covert video surveillance evidence against him, but in the present case the judge found that the other case did not support the worker’s argument.

The judge said the employer’s position was that the incident had not occurred as the worker had claimed, not that the worker was lying. She therefore dismissed his application.

The bottom line: A worker’s claim for damages may be undermined by inconsistencies in the evidence relating to the incident blamed for the injury and its consequences, as well as pre-existing health conditions.

Read the judgment

Johnson v Fraser Coast Regional Council [2020] QDC 199

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